Fetus homicide may be tough to prove in Cleveland kidnapping case, expert says

An Ohio prosecutor who on Thursday pledged to seek murder charges against the Cleveland kidnapping suspect for allegedly pummeling the pregnant stomach of one of his reported victims — causing her to frequently miscarry — may ultimately struggle to prove the blows led to those fetuses' deaths, said one former federal prosecutor.

To secure a guilty verdict for fetal homicide, prosecutors typically have to show that a killer clearly meant to murder the unborn baby by assaulting the mother in a way that would trigger an early end to the pregnancy.

But proving intent is not the challenge facing the prosecutor in Cuyahoga County, said Heidi Rummel, a law professor at the University of Southern California.

"The hardest part, I imagine, would be proving causation — you have to show the actions actually caused the death. And years after the fact that might be somewhat of a challenge," added Rummel, a former federal prosecutor in Washington, D.C. and in Los Angeles. "We don't know how far along (the victim) was. It's hard to know for sure if it was a miscarriage or not. But the intent seems pretty clear based on the facts I've read."

Cuyahoga County prosecutor Timothy McGinty has vowed to seek charges against suspect Ariel Castro for each act of sexual violence, rape, kidnapping, assault and “each act of aggravated murder he committed by terminating pregnancies that the offender perpetuated against the hostages during this decade-long ordeal.”

Castro already is charged with four counts of kidnapping — three for the women he is accused of abducting and one for a baby that one of the women bore in captivity. One of the three women, Michelle Knight, has told investigators that Castro impregnated her at least five times, and that he starved her and punched her repeatedly in the stomach to force her to miscarry, according to a Cleveland police report.

McGinty specifically cited a provision of Ohio law that defines it as aggravated murder when someone causes, “with prior calculation and design,” the unlawful termination of another person’s pregnancy.

“This child kidnapper operated a torture chamber and private prison in the heart of our city,” McGinty said. “The horrific brutality and torture that the victims endured for a decade is beyond comprehension.”

McGinty's decision falls in line with fetal homicide laws on the books in at least 38 states.

The penalties for killing unborn babies via assaults on the mother vary depending on the location of the crime: in Kansas, any unborn fetus is considered a human following fertilization; in Colorado, offenders can be prosecuted only if they are shown to have known that the mother was pregnant, reports the National Conference of State Legislatures.

The case in Ohio is unique, but the issue of charging someone with murder for killing an unborn baby has been colored by the abortion rights debate.

Anti-abortion groups have pushed for laws declaring any fetus to be an unborn human. However, supporters of abortion rights argue that such law would not only make the procedure illegal, but they could make also it possible to prosecute pregnant women for endangering their babies in a variety of ways — and could even put them on trial after suffering a miscarriage.

Rummel, meanwhile, also has handled the cases of many incarcerated women in California who, she said, were convicted of crimes that stemmed from abusive relationships. Some of those woman later told her that their husbands or boyfriends routinely punched or kicked them in their stomachs after they became pregnant.

"It's not an unusual story in intimate-partner battering situations that men do this," Rummel said. "When an intimate partner does it, you never hear about it. But when a stranger does it, the whole county is in a uproar. It's tragic whenever it happens."